US v. Derrick Stancil, No. 12-4616 (4th Cir. 2013)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 12-4616 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. DERRICK LAMONT STANCIL, a/k/a DAP, a/k/a Daffy, Defendant - Appellant. Appeal from the United States District Court for the Eastern District of North Carolina, at New Bern. James C. Dever III, Chief District Judge. (4:11-cr-00062-D-1) Submitted: February 22, 2013 Decided: March 7, 2013 Before NIEMEYER, SHEDD, and AGEE, Circuit Judges. Affirmed by unpublished per curiam opinion. Mary Jude Darrow, LAW OFFICE OF MARY JUDE DARROW, Raleigh, North Carolina, for Appellant. Jennifer P. May-Parker, Assistant United States Attorney, Raleigh, North Carolina, for Appellee. Unpublished opinions are not binding precedent in this circuit. PER CURIAM: Derrick Lamont Stancil appeals his convictions and sentence for conspiracy to possess with intent to distribute a quantity of heroin, in violation of 21 U.S.C. § 846 (2006) (Count One), and possession with intent to distribute a quantity of heroin, in violation of 21 U.S.C. § 841(a)(1) (2006) (Count Two). Counsel has filed a brief under Anders v. California, 386 U.S. 738 (1967), asserting that there are no meritorious issues but raising for the court s consideration (1) whether counsel was ineffective for not filing a motion to suppress, and (2) whether the drug quantity was in error because it was based on testimony that was unreliable and not credible. Stancil was informed of the opportunity to file a pro se brief, but did not do so. The Government did not file a brief. Finding no error, we affirm. Claims of ineffective assistance of counsel generally are not cognizable on direct appeal. F.3d 290, 295 (4th Cir. 1997). United States v. King, 119 Rather, to allow for adequate development of the record, a defendant must bring his claims in a 28 U.S.C.A. § 2255 (West Supp. 2012) motion. Id.; United States v. Hoyle, 33 F.3d 415, 418 (4th Cir. 1994). However, ineffective assistance claims are cognizable on direct appeal if the record conclusively establishes 2 ineffective assistance. Massaro v. United States, 538 U.S. 1690, 1693-94 (2003); United States v. Richardson, 195 F.3d 192, 198 (4th Cir. 1999). We conclude that the record does not conclusively establish that counsel was ineffective. Stancil was attributed initially to him challenged for the sentencing drug quantity purposes. After that the Government conducted further investigation and reduced Stancil s drug quantity, Stancil withdrew all objections, including his objection to the drug quantity. Because Stancil withdrew his objection although to the drug quantity, he believed he was responsible for even less heroin, appellate review is waived. Generally, unpreserved plain error. errors in sentencing are reviewed for See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725, 731-32 (1993). However, a defendant may waive appellate review of a sentencing error if he raises it and then knowingly withdraws an objection to the error before the district court. See United States v. Horsfall, 552 F.3d 1275, 1283 (11th Cir. 2008) (finding that defendant s withdrawal of objection to sentence enhancement precluded appellate review of enhancement); United States v. Rodriguez, 311 F.3d 435, 437 (1st Cir. 2002) ( A party who identifies an issue, explicitly withdraws it, has waived the issue. ). and An appellant is precluded from challenging a waived issue on appeal. 3 then See Rodriguez, 311 F.3d at 437. from a situation assertion of a in Such a waiver is distinguishable which right a party what fails courts to make a typically timely call a forfeiture, id. (quoting Olano, 507 U.S. at 733), which, as noted above, may be reviewed on appeal for plain error. Olano, 507 withdrew U.S. his at 733-34. objection to Because the drug Stancil See affirmatively quantity, the issue is waived. Moreover, Stancil s guilty the plea record was clearly counseled, establishes knowing, and that voluntary. The district court substantially complied with Fed. R. Crim. P. 11 and questioned Stancil, counsel and the Government to ensure the voluntariness of his guilty plea. Accordingly, we affirm the convictions. Stancil s applying States, the 552 sentence is abuse-of-discretion U.S. consideration of 38, both 51 the correctly reasonableness, Gall This procedural v. review and United requires substantive Id.; United States v. Lynn, 592 F.3d 572, 575 (4th Cir. 2010). court for standard. (2007). reasonableness of the sentence. district reviewed After determining whether the calculated the advisory Guidelines range, this court must decide whether the court considered the 18 U.S.C. § 3553(a) (2006) factors, 4 analyzed the arguments presented by the selected sentence. parties, and sufficiently explained the Lynn, 592 F.3d at 575-76; United States v. Carter, 564 F.3d 325, 330 (4th Cir. 2009). If the sentence is free of significant procedural error, this court will review the substantive reasonableness of the sentence. Lynn, 592 F.3d at 575. We conclude that the district court did not abuse its discretion at sentencing. The court considered the arguments from each party and determined that a middle-of-the-Guidelines sentence was appropriate. We affirm the sentence. In accordance with Anders, we have reviewed the record in this case and have found no meritorious issues for appeal. We therefore affirm Stancil s convictions and sentence. This court requires that counsel inform Stancil, in writing, of the right to petition the Supreme Court of the United States for further review. If Stancil requests that a petition be filed, but counsel believes that such a petition would be frivolous, then counsel may move in this court for leave to withdraw from representation. Counsel s motion must state that a copy thereof was served on Stancil. We dispense with oral argument because the facts and legal contentions are adequately presented in the 5 materials before this court and argument would not aid the decisional process. AFFIRMED 6